[2017] KEHC 7084 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

PROBATE & ADMINISTRATION CAUSE 145 OF 1996

RE ESTATE OF CHEBOI MAINA (DECEASED)

DAVID MAINA………….….……..…………….……..1ST PETITIONER

ESTHER MAINA……..……………….……….……..2ND PETITIONER

VERSUS

MICHAEL ROTICH MAINA……………….....…….…1ST OBJECTOR

JOAN CHEBOI……………..…………...............……2ND OBJECTOR

JUDGMENT

1. Cheboi Maina (hereafter the deceased) died intestate on 12th August 1993. He was married to two wives: Tabase Siokwei Maina; and, Teriki Maina. The deceased was blessed with sixteen children: Ten daughters; and, six sons. A dispute has arisen over the distribution of two properties: Uasin Gishu/ Ainabkoi East 31 and Uasin Gishu/Ainabkoi East 32.

2. The original petition for letters of administration was presented on 11th October 2002 by Michael Rotich Maina and Joan Cheboi. They falsely represented themselves in form P & A 5 as the brother and widow of the deceased. A grant was issued to them on 14th October 2002; and, confirmed on 22nd September 2003.

3. By an application dated 22nd February 2009, Teriki Maina objected to the grant. On 7th December 2009, the grant was revoked; and, Teriki Maina and Michael Rotich Maina were appointed the joint administrators. As fate would have it, Teriki Maina died on 1st January 2010. On 5th August 2011, she was substituted with David Maina and Esther Maina, the current petitioners.

4. On 22nd November 2011, the new petitioners filed a fresh summons for confirmation of the grant. It was contested by the objectors. The matter proceeded by way of viva voce evidence. The 1st objector Michael Rotich Maina was the first witness. He relied on his witness statement dated 10th April 2013. He is the eldest son of the deceased from the 2nd house. His mother was Siokwei Maina. He said that his younger brother, William Kiprop Cheboi, was married to the 2nd objector, Joan Cheboi. William Cheboi died before his father. He said his father (the deceased in this cause) gave land parcel Uasin Gishu/Ainabkoi East 32 to William Cheboi. It was his evidence that the land should go to the widow, the 2nd objector.

5. PW1 said that the deceased had given the 1st petitioner, David Maina, land at Kerio Co-operative Society, Burnt Forest. In his view, it would be unfair for David to claim more land; and, more particularly, the one belonging to his late brother. He testified that his mother (Siokwei), his step mother (Teriki) and all his sisters were not given any land. Finally, he said the deceased did not divide his land according to houses; but directly to his sons.

6. Upon cross examination, he claimed that he bought parcel number Uasin Gishu/Ainabkoi East 31 in 1962 but in his father's name. He did not have documents to support that assertion. He said the 2nd petitioner, Esther Maina, lives on parcel Uasin Gishu/Ainabkoi East 32 with the 2nd objector. He also referred to a Land Disputes Tribunal case. The resultant decree was adopted in CMCC 16 of 2003 at Eldoret (exhibit 1). The elders awarded the two widows equal shares in Uasin Gishu/Ainabkoi East /31 and 32.

7. PW2 was Joan Cheboi. She said that in the year 1990, the deceased gave her Uasin Gishu/Anaibkoi East/32. She is residing there; and, cultivates about 4 acres. The land is about 33 acres. She said her husband, William Kiprop, died in 1988. She testified that Esther Maina, the 2nd petitioner, was present when the deceased distributed the land to her; and, that it would be unfair to share the land with her. She said the two petitioners are the son and daughter of Teriki Maina. She said the first widow is buried in Kitale; and, the other on Uasin Gishu/Ainabkoi East/32. That marked the close of the objectors’ case.

8. The petitioners relied on their joint witness statement filed on 12th October 2012. At paragraph 5, they stated that their mother, Teriki Maina, was allocated Uasin Gishu/Ainabkoi East/32 while her co-wife, Siokwei, was given Uasin Gishu/Ainabkoi East/31. They stated further that the 2nd objector remarried the 1st objector.

9. In his testimony in court, the 1st petitioner stated that Teriki Maina was living onUasin Gishu/Ainabkoi East/32. She was buried there. He testified that he bought land in Burnt Forest in 1972 for the consideration of Kshs 1000 per hectare. He said the land is about 10 acres; and, that it initially belonged to his father. He claimed he was evicted due to a debt owed to AFC. He then purchased the land afresh in 1972; or, repaid the debt.

10. The 1st petitioner testified that he is laying claim to part of parcel number 32 on behalf of his mother. He said that the 1st objector does not reside on the land. Upon cross examination, he conceded that his father had other land besides the two portions in dispute. In Reserve he had two other parcels; and, one in Kipsomba. His brother, Elkana Kipkoech was given land in Kipsomba, Tarakwa. Two other brothers, Kitiem Cheboi and Stephen Maina, were given land in Mosop. He said his father did not give him any land. That marked the close of the petitioners’ case.

11. All the parties have filed written submissions. Those by the objectors were filed on 15th February 2017; those by the petitioners on 6th March 2017. I have considered the evidence and rival submissions.

12. I will start with the legal implications of the award by elders in the decree registered in CMCC 16 of 2003 at Eldoret. The Land Disputes Tribunal awarded the two widows equal shares in Uasin Gishu/Ainabkoi East/31 and 32. The operative law was the Land Disputes Tribunal Act (now repealed). Section 3 of the Act stipulated as follows;

“3 (1) Subject to this Act, all cases of a civil nature involving a dispute as to-

(a) The division of or the determination of boundaries to, land including land held in common;

(b) A claim to occupy or work land, or,

(c) Trespass to land shall be heard and determined by a Tribunal established under section 4. ”

13. The land in dispute belonged to the deceased. At the time the dispute came before the tribunal, he was dead. It wasregistered land. The questions of succession to the estate; or, the shares of beneficiaries were beyond the jurisdiction of the tribunal. See M’Marete v Republic & 3 others, Court of Appeal, Nyeri, Civil Appeal 259 of 2000 [2004] eKLR. The deceased died intestate. The Law of Succession Act applied. By the time the lower court registered the award in 2004, the High Court (Etyan’g J) had already issued a grant in favour of the original petitioners on 14th October2002. I am alive that no appeal was filed against the award of the Land Disputes Tribunal. But failure to appeal would not cure the illegality. It is not surprising that none of the disputants has sought to enforce the decree.

14. The deceased was polygamous. The starting point is section 40 of the Law of Succession Act which provides-

“40 (1) Where an intestate has married more than once under any system of law permitting polygamy his personal and household effects and the residue of the net intestate shall in the first instance be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2) the distribution of the personal and household effects and the residue of the net intestate within each house shall be in accordance with the rules set out in section 35 to 38”.

15. Section 40 does not however take away the discretion of the court to distribute the estate fairly. By dint of sections 27, 28 and 35 of the Act, the court has been clothed with wide discretion to provide for dependents or beneficiaries. This point was succinctly captured by Omollo J A in Rono v Rono & another [2008] 1 KLR (G&F), [2005] 1 KLR 538 at 553-

“I had the advantage of reading in draft form the judgment prepared by Waki, JA, and while I broadly agree with that judgment, I nevertheless wish to point out that I do not understand the learned judge to be laying down any principle of law that the Law of Succession Act, Cap 160 of the Laws of Kenya, lays down as a requirement that heirs of a deceased person must inherit equal portions of the estate where such a deceased dies intestate and that a judge has no discretion but to apply the principle of equality as was submitted before us by Mr. Gicheru. I can find no such provision in the Act”.

16. The two widows of the deceased are also dead. Under section 35 (2) of the Law of Succession Act, a surviving widow would have enjoyed a life interest in the property. It is thus instructive to remember that this dispute relates to the estate of Cheboi Maina, and not the two widows. I am satisfied from the evidence that the deceased did not divide his property as per the houses: But to all the sons. It is telling that none of the sons, except David Maina, has come back to claim a share in Uasin Gishu/Ainabkoi East/32 or 31.

17. However, the second widow (original objector) survived the deceased. She was living on Uasin Gishu/Ainabkoi East/32. She and her husband are buried there. It would be unjust to sweep her interest under the carpet. Her daughter, Esther Maina (2nd petitioner), was married at the time the deceased died. She has since separated from her husband; and, is living on the land with Joan Cheboi.

18. Joan Cheboi conceded that she is only cultivating about 4 acres of the land. The rest is a grazing field. True, none of Esther’s sisters was given land by their father. And none has stepped forward to claim inheritance. However sections 26 and 29 of the Law of Succession Act do not discriminate between sons and daughters; or, even married daughters. See Re Estate of Simeon Kuria KamauHigh Court, Eldoret Succession Cause 218 of 1997 (unreported), Re Estate of Hellen Muthoni Karanja, High Court, Eldoret Succession Cause 180 of 2006 [2015] eKLR.

19. I stated earlier that the court has wide discretion to distribute the estate fairly. I will give Esther Maina a share of the deceased’s land. Like I have stated, she is living there with Joan Cheboi. I grant her half of Uasin Gishu/Ainabkoi East/32. The other half shall go to the 2nd objector, Joan Cheboi. The reason is simple: William Kiprop Cheboi was married to the 2nd objector. William Cheboi died before the deceased. I am satisfied that the deceased had given land parcelUasin Gishu/Ainabkoi East/32 to William Cheboi. It must follow as a corollary, that the property devolved to his widow Joan Cheboi and her children. There is no evidence that William had received any other land from his father. But I have taken into consideration that Joan Cheboi remarried the 1st objector. The 1st objector owns another piece of propertyUasin Gishu/Ainabkoi East/31.

20. I did not believe David Maina. He testified that he bought land at Kerio Co-operative Society, Burnt Forest, in 1972. He said the consideration was Kshs 1000 per hectare. He said the land is about 10 acres; and, that it initially belonged to his father. He claimed he was evicted due to a debt owed to AFC. He then purchased the land afresh in 1972; or, repaid the debt. First, he had no documentary evidence to support his claim. There was no iota of evidence of payment to AFC. I have reached the conclusion that the land in Burnt Forest belonged to the deceased; and, that the deceased gave it to him.

21. I also took the evidence of Michael Rotich Maina with a pinch of salt. For one, he had an indirect interest in Uasin Gishu/Ainabkoi East/32:He had since inherited Joan Cheboi; and, fathered a number of children with her. His claims that the entire piece of land should go to his late brother must be taken with caution: he would ultimately become a beneficiary. But I am satisfied that he bought the other parcelUasin Gishu/Ainabkoi East/31 in 1962 but in his father's name. He also did not have documents to support that assertion. But there was no solid evidence in rebuttal; and, I have taken into consideration that he is now the registered owner of Uasin Gishu/Ainabkoi East/31.

22. Granted the evidence, it would be unjust for David Maina, to now claim an additional share of land in Uasin Gishu/Ainabkoi East/32. The 1st petitioner submitted that he was pursuing the land because his late mother was entitled to a share. Like I have stated, the two widows are deceased. Under section 35 (2) of the Law of Succession Act, a surviving widow would have enjoyed a life interest in the property. Unlike his sister Esther Maina, I have found that David Maina had been provided for by the deceased. His claim fails.

23. My final orders are as follows:

i. That the administrators of the estate shall remain Michael Rotich Maina, David Maina and Esther Maina.

ii. That the property known as Uasin Gishu/Ainabkoi East/31 does not form part of the estate of the deceased. That property belongs to Michael Rotich Maina.

iii. That the other property known as Uasin Gishu/Ainabkoi East/32 forms part of the net intestate estate of the deceased. It shall be divided equally between the 2nd objector, Joan Cheboi (as widow of the son of the deceased, William Kiprop Cheboi); and, the 2nd petitioner, Esther Maina (as daughter of the deceased in this cause, Cheboi Maina).

iv. That the 1st petitioner, David Maina, is not entitled to a share of Uasin Gishu/Ainabkoi East/32.

24. A certificate of confirmation of grant shall issue in terms of this judgment. That leaves the question of costs. I have taken into account that this is a succession matter; or, a family dispute. In the interests of justice, each party shall bear its own costs.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 23rd March 2017.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

Mr. Okara for Mr. Omboto for the petitioners instructed by Rioba Omboto & Company Advocates.

No appearance by counsel for the objectors.

Mr. J. Kemboi, Court clerk.